The nature of intellectual property

Intellectual property is now a term that is widely used within both the legal profession and society at large. Despite this extensive use, a comprehensive definition of the term remains elusive, especially as some forms of ‘intellectual property’ such as ‘sweat of the brow’ copyright are not intellectual and others, such as confidential information, are very arguably not property. On the other hand, most forms of intellectual property are clearly regarded as just that – forms of property that are recognised as flowing from the exercise of intellectual activity. For example, patents, designs, plant breeder's rights, copyright and registered trade marks are expressly stated by legislation to be property. In addition, various statutory requirements evidence the need for the exercise of intellectual activity to obtain that property status. For example, patent applications must demonstrate an inventive step before they acquire registration and literary, dramatic, musical and artistic works must be original in order to qualify for copyright protection.

In the absence of a satisfactory exhaustive definition of intellectual property, probably the best that can be done is to rely upon an inclusive list of categories of legal rights that are generally recognised as constituting intellectual property. Article 2(viii) of the Convention Establishing the World Intellectual Property Organization states that: